Do people have the right to own any semi-automatic rifle, magazine size? Yes
Editor's Note: The following article first appeared on this website on April 3, 2013.
We, the people, have the constitutional right to own semiautomatic rifles and the standard-capacity magazines designed for those rifles. The plain words in the U.S. and Ohio constitutions establish this, so long as those words are given their ordinary, everyday meanings.
This is why proponents of gun control engage in sophistry at every opportunity. For example: "You don't need an AR-15 to hunt." Fortunately, hunting has nothing to do with the question. Government could ban all hunting tomorrow. Or: "If an AR-15 is an 'arm' for constitutional purposes, then the people also have the right own rocket launchers." It is far easier to argue that a gun is not an "arm" than to justify why the citizen's right to own that arm should be abolished.
The proper question to ask is whether the government has the enumerated power to regulate or abolish the means of exercising this constitutional right.
The U.S. Supreme Court has not yet staked a position on the right to own a rifle that happens to look scary to a certain segment of society, nor the magazines for those rifles. The 1939 U.S. Supreme Court case United States vs. Miller was the darling of gun-banners for 70 years. This case, in which only the federal government filed a brief and appeared at oral argument, established, at most, that the only right to own a firearm was the right to own a firearm relevant to military service. (Careful what you wish for.)
The 2008 case, District of Columbia vs. Heller, established an individual right to own firearms for self-defense — nothing more, nothing less. The Heller decision also held that Washington, D.C., must issue Dick Heller a license to own a firearm without demonstration of any need. In 2010, the McDonald vs. Chicago ruling extended the Heller decision to the states.
Where, then, is the Supreme Court's ruling that semiautomatic rifles, and the standard-capacity magazines for those rifles, are outside the protection of the Constitution?
This ruling does not exist, and this is the reason the pro-gun-control attorneys seize on dicta in Heller and McDonald — "dangerous and unusual weapons" and laws "protecting the public" — as representing U.S. Supreme Court approval for the banning of semiautomatic rifles and standard-capacity magazines for these rifles.
As I discuss below, nearly 100 percent of credible studies conclude that rifle bans have no impact on crime. This is because rifles are almost never used in crimes. Where the studies disagree, we are quibbling over whether rifles are used in 1 percent of crimes or maybe 3 percent of crimes. Also note that, during the Heller case and the McDonald cases, crime statistics showed that Washington, D.C. (Heller) and Chicago (McDonald) led the United States in almost all categories of violent crime. This, despite the fact that legal ownership of all guns was banned during this time.
This is the reason that pro-gun-control attorneys focus all of their energy on legal argument over what is referred to as the "level of scrutiny." Anytime a court reviews a law that infringes upon a constitutional right, the most important factor is what level of scrutiny the court will use in reviewing the law. This review varies from almost no scrutiny, in which the court will defer entirely to the government, to strict scrutiny, in which the court conducts an independent inquiry into whether the government has a compelling need to infringe upon the right, whether the infringement is as narrow as possible and whether the infringement actually accomplishes the compelling need the government claims.
The reason all of this gun-ban argument is focused on the level of scrutiny is simple: If the government has to demonstrate that gun bans actually reduce crime or violence, no gun ban will ever survive judicial review.
Gun control is about control, not crime or violence. Gun control disarms me and you, not criminals.
The United States conducted a 10-year, nationwide experiment banning "assault weapons" and standard-capacity magazines. The result? Not one credible study concluded that the ban had any impact on crime or violence. Quite the contrary, studies by the Centers for Disease Control and Prevention, the National Research Council, the U.S. Department of Justice, the National Institute of Justice and the Jerry Lee Center of Criminology concluded there was no measurable impact on crime or violence.
Gun-banners like to talk about "reasonable," "common sense" and "compelling" reasons to abolish the exercise of constitutional rights. What is "reasonable," "common sense" or "compelling" about laws that have no impact on crime or violence?
Nothing. Proving in a court of law that their ideas work is the biggest nightmare of any gun-banner.
Ken Hanson is a long-time Buckeye Firearms Association volunteer, receipient of the NRA-ILA Presents Defender of Justice Lifetime Achievement Award and author of “The Ohio Guide to Firearm Laws.”